Appeals court rules for random drug testing in Suncor Energy case

On behalf of Overholt Law posted in employment law on Wednesday, October 4, 2017.

Employees at the oil and gas operations of Suncor Energy in British Columbia may be interested in the outcome of a legal battle that followed disputes in 2012 between the energy giant and Unifor - the union that represents some of the employees at the company's oil sands sites in another province.

At issue was random drug and alcohol testing, with the union taking the position that the company had violated employee rights by invading their privacy. In response, the employer underscored the fact that impairment by drugs or alcohol cannot be tolerated in employees in safety-sensitive positions.

Employees who were tested included those in "safety-sensitive" positions; for example, those who work with heavy equipment, such as trucks weighing over 400 tons that stand as tall as multi-storey buildings, along with hydraulic shovels and cables that can exceed heights of 21 metres.

After arbitration in 2014, the majority of an arbitration tribunal favoured Unifor, but that decision was quashed by Alberta's Court of Queen's Bench in 2016. The union then appealed the ruling, and the Court of Appeal recently dismissed the challenge in a unanimous decision.

At the time of the arbitration of the initial grievance, the total number of employees at the Alberta oilsands sites of Suncor was approximately 10,000, of which almost 3,400 were members of Unifor. Among the evidence produced by the company at that time was over 2,200 incidents in which employees tested positive for alcohol or drugs. No indication was given of how many of those results represented union members because they work side-by-side with non-union members every day.

This case is the latest in a series of decisions where the courts have been tasked with balancing employee privacy rights with an employer's duty to keep a safe and healthy workplace. The union has already announced they may seek leave to appeal to the Supreme Court of Canada. According to Unifor national president Jerry Dias, "[s]afety is always our first priority, but we know that random drug testing does not reduce accidents or improve safety".